Criminal Justice and Courts Bill
Baroness Finlay of Llandaff Excerpts(10 years, 8 months ago)
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Baroness Meacher (CB)
My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.
I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.
Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.
Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.
Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.
The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.
Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?
I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.
I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.
As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.
The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.
Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.
Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.
Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.
I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.
I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.
I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.
Lord Winston (Lab)
My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.
My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.
After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.
Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.
Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.
Assisted Dying Bill [HL]
Baroness Finlay of Llandaff Excerpts(10 years, 11 months ago)
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Baroness Finlay of Llandaff (CB)
My Lords, like many others, particularly doctors who will be expected to be involved in assisting their patients’ suicide, I do not support this Bill. But the Supreme Court has asked Parliament to look at the issue and we should not oppose it at Second Reading. I have worked caring for dying patients for more than 25 years and I have registered my interests.
This Bill has broad categories into which almost anyone can be shoe-horned and it comes within a whisker of full-blown euthanasia. Are there safeguards? No, there are only broad categories into which you will find some doctor who would state that almost anyone fits. Let us take a prognosis of six months: there is no accurate test at all. Even a best guess is so surrounded with inaccuracy that the only honest answer to the question, “How long have I got?”, is to say, “I honestly can’t tell”. Even of those thought to be likely to die within 48 hours, about 4% improve and some even go home. But this Bill is not about them or about better care at the end of life; it is about assisted suicide, effectively on request.
Nor is it about a right to die. Everyone will die. If you do not want treatment that might prolong your life, you can refuse it. For those with motor neurone disease on a ventilator who want to stop treatment, we can manage their dying peacefully and gently as they die of their illness. When treatment is withdrawn, it is not withdrawn with the doctor’s intention of bringing about the patient’s death; when lethal drugs are supplied, they are supplied with that intent. This Bill is about licensing doctors to supply lethal drugs to some of their patients and helping them to commit suicide, however long their life might otherwise have gone on for. I have seen the strongest people, including politicians and senior doctors, be the most vulnerable when facing dying—vulnerable to coercive influence and vulnerable to their fears. The role of my profession is to address those fears and to support those people, not to encourage them, even silently, to believe that they should foreshorten their lives.
Today’s doctors are worn down by workload. They do not know their patients in detail. They know only what they are told in a brief encounter. They cannot possibly detect coercion from family. I cared for a lady whose family we all believed were loving but they stopped visiting as much once her fixed-term life insurance expired. What about subtle coercion from staff attitudes that are negative or instil hopelessness?
The signature of a second doctor provides no assurance. Who is going to find this second doctor? He or she is likely to be known to the first doctor as someone who sees physician-assisted suicide as a reasonable response to severe progressive illness. Let us not forget that Dr Shipman’s 176 cremation forms were all countersigned by a second doctor.
Of course, palliative care does not have a magic wand to make everything right. Nothing in medicine has 100% success. Even assisted suicide sometimes fails to kill. But we do not kill patients with morphine properly prescribed to relieve pain, or with nerve blocks or other interventions. The Francis report showed how bad care can be. The well intentioned Liverpool care pathway failed: it became just another tick-box exercise. That is what this will be—a set of forms to be filled in, without proper scrutiny of the assessments, the processes and the administration.
Those of us at the sharp end who care for terminally ill patients day in, day out know that the real work of assisting someone to die is not just something on a to-do list. It calls for good care, dedicated support and time, and not the quick fix of offering the medical equivalent of a loaded gun.
Criminal Justice and Courts Bill
Baroness Finlay of Llandaff Excerpts(10 years, 11 months ago)
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“( ) It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully neglect that individual in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances and causes the avoidable death of, or serious harm to, that individual.”
Baroness Finlay of Llandaff (CB)
My Lords, Clause 17 creates a new offence of ill treatment or wilful neglect that is likely to result in hundreds of additional criminal investigations of healthcare professionals, including doctors. The problem is that Clause 17 does not indicate a threshold for the offence against the individual care worker. The Medical Defence Union, which has 128 years’ experience defending healthcare professionals, the Royal College of Physicians, of which I declare that I am a fellow, the BMA, of which I am president, and the Foundation Trust Network are all concerned about this. There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely.
The Department of Health’s consultation that preceded the proposal for the new offence suggested that it would apply only where the alleged crime was so severe that it would merit a criminal sanction over and above any action taken by a regulator, such as the General Medical Council for doctors. The Department of Health has consistently suggested that only the more serious instances of such ill treatment or neglect would give rise to the prosecution of care workers. My concern is that this is not clear in the way in which Clause 17 is worded.
Clause 18 would create a similar offence for organisations providing care. It specifies that for the offence to apply the,
“provider’s activities are managed or organised in a way”,
that means there is,
“a gross breach of … duty of care”,
that the provider owes to the individual. Clause 18 appears to envisage the offence applying only where the conduct alleged falls far below what can reasonably be expected of the care provider, so there is a threshold.
These specifications appear absent from Clause 17. The practical effect of the difference between the two clauses is that the threshold for an organisation is far higher than that for the individual worker. It is of particular concern for doctors because, if allegations of ill treatment or wilful neglect are made to the police, it is very likely that, in the absence of Clause 17 specifying a higher threshold, there would be very little option but to investigate.
If, as the Department of Health suggests, the aim is to prosecute only the most serious cases, the threshold in Clause 17 should indicate where the proper level of criminality lies. To achieve that, the amendment suggests that a threshold similar to that of Clause 18 is built into Clause 17. In addition to the offence applying where there is ill treatment or wilful neglect, it should be necessary for that to represent a gross breach of the care worker’s duty of care to the individual.
Let me illustrate that with a fictional scenario, although it is based on a realistic type of incident that could easily happen and could give rise to such allegations. A patient is terminally ill and becoming restless. The doctor intends to prescribe a dose of pain relief for breakthrough pain and something for the restlessness, and the family knows that. However, the doctor is suddenly called away to a young man who is in a peri-arrest situation. He was admitted as an emergency with suspected meningitis. The doctor is then called to resuscitate another patient in an adjacent bed. That resuscitation is successful, so she is there for much longer than she would have been if it had been unsuccessful. By then, the results have come back on the man who has been confirmed as having meningitis and she is involved in instigating life-saving treatment. She then rushes back to the ward to find that the terminally ill patient has died without having received the additional analgesia or drugs for agitation that she had intended to prescribe at the point at which she was called away.
The family, understandably distraught, contact the police and allege that the doctor wilfully neglected their mother. As well as the hospital inquiry and a GMC referral, the police then have to investigate the doctor for wilful neglect. If that doctor is then suspended because there is an ongoing investigation, which could take up to six months, the hospital will have to employ a locum. Even if the police conclude that the investigation is not founded and do not bring any charges, the GMC concludes that there are no grounds for referral for fitness to practise and the hospital exonerates the doctor, that doctor has been out of the workforce during the investigation. She may be so seriously damaged by having tried to do her job to the best of her ability but appearing to fail, she may well think twice about continuing in medicine. We know that that is a problem now with some young doctors who find the stresses so great that they are opting out.
Throughout England and Wales there is a prosecutorial discretion, and if a new criminal sanction of wilful neglect is introduced without any indication of the threshold at which it should apply to individual practitioners, it is worrying. I suspect that scenarios not dissimilar to the case that I have described will happen, and not infrequently. They will principally affect both doctors and nurses. If the intention is that the sanction should be applied only in the severest of cases, and I believe that that is what the Department of Health intends, that should be clear in legislation. If it is not, another unintended consequence is that it could jeopardise transparency and candour, which goes in absolutely the opposite direction to the policy intention.
There are other amendments in this group which I support and will speak to only briefly. The inclusion of volunteer work is important because there are an increasing number of doctors who have retired and who are working as volunteers with groups such as asylum seekers and refugees. In fact, they have another problem already because they do not get tax relief against their NHS pensions for this completely voluntary work, even though they have to pay their GMC registration and maintain their defence union subscription. They are quite severely out of pocket to the tune of many hundreds of pounds for what you could say was the pleasure—indeed, they do it out of vocation and for job satisfaction—of working as volunteers with these very hard-to-reach and deprived people who are in difficult situations. They are often dealing with victims of torture. These doctors are not doing easy work as volunteers.
The other amendment in this group makes it clear that the concept of clinical judgment should be included. That becomes extremely important. There is a lot of guidance now within clinical practice, but it is only that: it is guidance and not as firm as a lot of people think. It is often based on the best research evidence available, but in every case it has to be interpreted for the individual. At the end of the day, it comes down to considered clinical opinion. One would hope that every doctor weighs things carefully in the balance and comes to a considered conclusion about what they are doing, but it would be damaging to patient care if that interpretation of guidance were jeopardised and there was a formulaic approach to the management of patients by imposing a risk-averse approach. We have seen the dangers already when you end up with a protocol-driven approach rather than an interpretation of guidance. We saw disasters with the Liverpool care pathway, which was well intentioned but poorly rolled out and so forth. I hope that the Government will also accept that concept of clinical judgment. I beg to move.
Baroness Barker (LD)
My Lords, very rarely for me, I want to disagree with the noble Baroness, Lady Finlay. We usually bat on the same side, but not tonight. My reason for disagreeing is quite simply that these provisions in the Bill have come about because of the considerable amount of work done by my colleague Paul Burstow. He came up with these proposals in consultation with people who had been well and truly at the coalface of the investigations into Mid Staffs and Winterbourne View. They have not been drawn up lightly.
I disagree with the starting point of the case that the noble Baroness put forward. She said that these provisions will inevitably lead to hundreds of investigations of doctors. However, that will only be if there is reason to investigate. Her amendment would severely undermine the deterrent effect of this legislation. The first part of Clause 17 says:
“It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual”.
That is a very powerful statement, and some of us are already beginning to be involved in training people within the health and social care field. We are already beginning to discuss the issues with people who run charities, asking them whether they know that this piece of legislation is coming along. It is beginning to have quite a profound effect on people about what they are supposed to do.
I have to take issue with the noble Baroness’s amendment where it goes on to add another three lines to the end of that subsection and to introduce two tests. First, it says somebody has to act,
“in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”.
I can understand that, although I am not exactly sure what it adds. However, the bit that I really find wrong is where it adds,
“and causes the avoidable death of, or serious harm to, that individual”.
One of the reasons Paul Burstow drafted his proposals as he did was the recognition that it is very rare for any health or social care provider suddenly to become a dreadfully malevolent or neglectful place. Usually, when there is bad practice, it is the accretion of pressure, slipping standards and lack of good management that bit by bit builds up to the point where people are unsafe. Part of the reason for framing this as it is was to tackle that sort of stuff, which can be devastating in its own way. We are talking not just about the physical health of people but their mental health. It was to cover that as well.
I will simply say to the noble Baroness that I understand where she is coming from and the bodies whose views she is representing to us. There is already a great deal of legislation under which members of the medical profession can find themselves the subject of an inquiry for misconduct; that really will not change. Although her amendment in particular—there are others in this group—would not fatally undermine this clause, it would put a huge dent in it and introduce a fair amount of, dare I say it, wriggle room for medical defence lawyers to get somebody off the hook. I may be wrong, and she may be proved right, but on balance what this clause does as written is to plug the gap that there has certainly been in social care, if not in the NHS, whereby front-line workers carried the can and those who were in positions of trust and oversight walked away when they should not have done. On balance, I do not accept her argument. No doubt the Minister will reply to it.
Baroness Finlay of Llandaff
Perhaps I might clarify. I certainly agree that mental harm is as serious as physical harm. I do not differentiate between the two. The problem is that there seems to be a different threshold between the two clauses, and I did not hear anything in what the noble Baroness said to point out that there was the same threshold between the two clauses. My concern is that, in the example I gave, the junior doctor would be the one who would take the rap. The organisation may have been disorganised and overstressed its staff and expected them to work unrealistically, but its threshold is set differently, and that is my concern.
Baroness Barker
That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.
Earl Howe
I come back to my earlier point: the bar is set high here because wilful neglect has to involve ill treatment that was intentional or reckless. The courts have traditionally interpreted that in a very narrow way, which is as it should be. I say this again and on advice: we do not believe that a doctor exercising his or her clinical judgment would fall within the scope of that offence.
I should make a couple of other points here. Amendment 33 refers only to “a registered medical practitioner”. The implication of that would be that other types of healthcare professionals exercising clinical judgement would not be excluded because they are not specified. So, for example, a triage nurse working in an A&E department would have very reasonable cause for concern about the kind of clinical judgments that they have to make perhaps not being outside the scope of the offence, because they are not explicitly mentioned in the Bill. Clearly, I would not want to create that kind of confusion and I am sure that the noble Lord would not either.
I hope that I have been able to demonstrate that the Government have worked hard to ensure that a whole range of issues and concerns were properly considered in the formulation of the new offence of ill treatment or wilful neglect. In particular, I hope that I have been able to reassure the noble Baroness and the noble Lords on their specific concerns and that she will now feel able to withdraw her amendment.
Baroness Finlay of Llandaff
I am grateful to the Minister for such a full response to the amendment that I moved and to the other amendments. For the record, I make it absolutely clear that ill treatment or neglect is never, ever acceptable by anybody. I am certainly not trying to make wriggle room for anybody. It is clear in the way that this debate has gone that it is about the intention of the worker, and if they were badly intended—if they had mal-intent—then they should duly be picked up and indeed suffer the consequences of the harm that they may have inflicted.
I hope, though, that the Minister will consider that the guidance that goes with this needs to set out clearly the issues that we have debated today, as well as the point raised just now by the noble Lord, Lord Beecham, which relates to all the clinical professionals. As the Minister has just said, it is not just doctors; it will be nurses, physiotherapists and lots of others who will be exercising clinical judgment. There is something important about being clear that clinical judgment has an important role because of the message that it gives to the public, who may feel vexatious against the outcome of a well intentioned clinical judgment that, for whatever reason, just did not go right—not even that a mistake was made but just that the disease process, their expectations and the way that they interpreted the communication have perhaps been mismatched.
I hope that we might be able to have further discussion with the Minister about the issues around this. I beg leave to withdraw the amendment.
Assisted Suicide
Baroness Finlay of Llandaff Excerpts(11 years, 4 months ago)
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Baroness Finlay of Llandaff (CB)
My Lords, the Director of Public Prosecution’s policy views, as an aggravating circumstance towards prosecution for assisting suicide, if that assistance is given by a doctor or nurse to a patient under their care—that is, within the duty-of-care relationship. Why is that? It is because—I speak as a doctor—patients are easily influenced by doctors and nurses: a word, a glance, a gesture can infer hopelessness. Patients trust us because they have to. They rely on us for information, believing that we have their best interests at heart. Patients can very easily be made to feel that they are a burden on the system, that the future is unrelentingly bleak, or that they would be better off dead. The subtle influences in a doctor-patient relationship are hard to quantify but very powerful, and hence potentially dangerous.
The Royal College of Physicians wrote to the Director of Public Prosecutions in 2009 during the consultation, stating:
“Our duty of care is to work with patients to mitigate and overcome their clinical difficulties and suffering. It is clear to us that this does not include being in any way part of their suicide”.
The Royal College of General Practitioners reinforced this view after an extensive consultation with its members lasting four months, in which 77% of GPs stated that the law should not be changed.
The policy does not inhibit open discussion about dying. Every day doctors have conversations with patients about their preferences as the end of life approaches, their treatment wishes and communication with the family. The General Medical Council makes it clear that we have a duty of care to listen to patients, discuss dying and explore their fears, and compels doctors to behave with compassion.
The policy that we are debating tonight was welcomed by all sides of the assisted suicide debate, but is now being criticised as chipping away at the current law on physician-assisted suicide—a means of assisted suicide which the medical profession as a whole does not support.
Baroness Murphy (CB)
My Lords, I give my full support to the introductory speech from the noble Baroness, Lady Jay. However, I am abandoning the rest of my speech because I am so cross at what I have heard today, which I know to be totally false and I am tired of listening to it.
First, I say to the noble Baroness, Lady Campbell of Surbiton, that services for terminally ill people have got substantially better over the past five years. There is greater understanding and more talk about the issues surrounding death in hospital. The economic circumstances of this country have not led to greater disadvantage for people who are terminally ill; paradoxically, it has led to an improvement.
I should also like to tell the noble Baronesses, Lady Campbell and Lady Grey-Thompson, that it is impossible to conflate the problems of people who are terminally ill, are already dying and are about to die with those of people who have a chronic long-term disability and are not dying. We must distinguish between these two groups. That is crucial because they are completely and utterly different.
I should also like to say to my two medical colleagues behind me, the noble Baronesses, Lady Finlay and Lady Hollins, that, if their patients do not talk about dying or the wish to die when they are terminally ill, I just do not think they are listening very well.
Baroness Murphy
I am sorry; I have only two minutes. Of course people talk about this. They do not sit there quietly. I read the BMA guidelines again today to make sure that I was up to speed—being a member of the BMA, I would, wouldn’t I?—and I can tell your Lordships that they make it very clear that you must not discuss any of these issues. I believe that the BMA circulated this guidance to everybody today and not just to doctors. Incidentally, we know that the BMA has never asked its members about this—I have never been asked by anybody in the BMA. Of course, it is led by people who are violently opposed to any new policy, so that is hardly surprising.
My time is up but I must express my anger today. I am for the proposals put forward by the noble Baroness, Lady Jay.
Justice: Non-custodial Sentences
Baroness Finlay of Llandaff Excerpts(11 years, 5 months ago)
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Lord Faulks
My Lords, I speak as someone who sat as a recorder—a part-time judge—throughout the period of the previous Government, and deciding whether or not to send someone to prison is the most difficult task that we perform. Sometimes people have to be sent to prison; on other occasions, it is considered possible and sensible, in the long term, to provide them with the opportunity of rehabilitation within the community. This Government are committed to providing constructive things for people to do while they are being rehabilitated in the community, and I agree with my noble friend.
Baroness Finlay of Llandaff (CB)
My Lords, can the Minister update the House on the progress of the pilots for sobriety schemes as alternatives to custodial sentences for alcohol-fuelled crime?
Lord Faulks
I believe that there will be an announcement shortly on that but I am unable to give the noble Baroness precise details at this moment. When information is available, I will write to her.
Prisons: Prisoners with Children
Baroness Finlay of Llandaff Excerpts(11 years, 7 months ago)
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Lord McNally
I go back to what I would expect to be common sense in these areas. Courts already have a duty, in every case, to take account of any mitigating factors, including that the offender has primary care responsibilities for children or other dependants. However, it is important that the presence of such dependants is brought to the attention of the court. Again, I can only emphasise that the direction of travel we are going in is to try to make sure that the prison and court authorities are aware of their responsibilities and that they link up with the supporting organisations needed in these cases.
Baroness Finlay of Llandaff (CB)
Are the Government formally evaluating novel schemes, such as that at Doncaster prison, which aim to maintain the bonding between a parent and a child—particularly a new-born baby? The parent’s reoffending rate is lower, bonding takes place and the parental duty is learnt while the person is in prison, rather than it being destroyed during their incarceration.
Lord McNally
Yes, my Lords, we are following the Doncaster experiment. Last month, I announced a new approach to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families, which is important not only for new-born babies but throughout childhood.
Coroners and Justice Act 2009 (Consequential Provisions) Order 2013
Baroness Finlay of Llandaff Excerpts(11 years, 11 months ago)
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Baroness Finlay of Llandaff
I am very grateful to the Government for this order, and I am glad to speak to it today. I thank the Government for the way in which this is happening because there has been a gentle transition that aims to enhance the experience of the public. When they are bereaved, people are incredibly vulnerable but there will now be a process that is kinder to them. If an investigation is required it can be conducted. If the investigation shows that it was a natural death, the coroner can simply register the death and the family will be spared the court process if it is not necessary. If, however, a hearing is required, the family will get an inquest and they will have the hearing that they may seek. That means that it meets the needs and expectations of the bereaved. I hope that having a process that is much clearer in its stages will also help with that group of deaths that are deaths by suicide. It has been particularly difficult even to ascertain the data on how many such deaths occur because of how they are often recorded. The term “verdict” is used, which is often seen as suggesting that there was some kind of criminal intent behind the suicide, when death by suicide is a very tragic event for everyone left behind.
This transition should also raise the overall standard of the experience of families from lower standards to the standards of the better and best. I have discussed the order with coroners, and there is an expectation that it will achieve what we have all wanted, which is to drive up the overall standard. I hope that the Government will encourage the chief coroner to have the courage to put pressure on those coroners that people have been concerned about.
My final point is to welcome the flexibility for Wales. We will have new transplant legislation before us in Wales fairly soon, and it will be particularly important that at all times of the day or night the coroner can be contacted in relation to organ retrieval. Having the ability to provide cross-cover should mean that we will have the service that is needed and that the coroners themselves will have a working life and home life that are compatible with enjoying living in Wales, rather than being exhausted. I am grateful to the Government.
Lord Beecham
My Lords, I have some second-hand acquaintance with the coroner system because I was articled to a coroner and subsequently became his partner. He was a part-time coroner in the north-east of England. I cannot resist the temptation—I rarely do—to recount a couple of incidents from that time. The first was the remarkable theory constructed by the coroner’s officer, who is a police officer attached to the coroner’s office, about a chap who was found drowned in the bath. The officer came up with the wonderful theory that this man had committed suicide by deliberately banging himself on the back of the head so that he would become unconscious and drown in the bath. My principal was not entirely convinced by this theory, and accidental death was recorded instead. On another occasion he had to show a bereaved widow the body of her husband for identification purposes. The body was produced from the cabinet and uncovered, and she acknowledged that this was indeed her husband. She turned to go away and my partner, as he then was, began to put the drawer back into the cupboard, but then she said, “Do you mind, Mr Henderson, if I have another look?”. “Oh yes, my dear”, he said, and pulled the thing out again and uncovered it. She looked down at her husband and said, “Well, there you are”—I will not repeat the expletives—“may you rot in hell”. So a coroner’s life can be quite an interesting one.
With regard to the order, my honourable friend Robert Flello raised a couple of points in the other place. The first was to regret the fact that it did indeed take something of a struggle to persuade the Government to retain the office of chief coroner. However, they did that, and I join the noble Baroness in commending that and, up to a point, the changes before us today. She and the Minister are right to refer to the continued availability of Section 13 of the 1988 Act and the possible process of obtaining an order from the Attorney-General. However, that is by no means a simple procedure; rather, it is convoluted and, given that the noble Baroness has reminded us of the state of mind of bereaved families, it is one that is difficult to pursue.
The point is that in the 2009 Act there was provision for an appeals procedure. My honourable friend asserted, and I agree with him, that it would have been better to have retained or implemented that provision, particularly as the alternative to the Attorney-General procedure, cumbersome and protracted as it is, will now be only to rely upon judicial review. Judicial review, of course, poses a question of cost and of course will largely be out of scope of legal aid. It will be yet another difficult process for someone, particularly in the circumstances of bereavement, to negotiate, both practically and emotionally. It is unsatisfactory that the Government have not retained—or, rather, implemented—that provision for an appeals process, and are leaving the potential applicant with an unsatisfactory choice between the Attorney-General process and JR, the access to which is highly questionable .
In replying to my noble friend, the Minister, Mrs Grant, said simply:
“The right answer is to raise standards”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 26/6/13; col. 7.]
As my noble friend pointed out, the two things are not incompatible. Of course it may well be, as both the Minister and the noble Baroness have said, that standards should indeed be raised, but that does not necessarily mean that there will not on occasion be the perceived necessity on the part of bereaved members of the family or others to challenge a decision. There ought to be a proper scope to facilitate that, and the concern is that that is not easily available under the order as it will stand.
The other aspect that the Minister might perhaps touch on is what is left to be done. Just last week we had a response to the consultation on other aspects of implementing the reform, and I assume that there will be further orders to come. I do not know if he is in a position to indicate when that might happen—I hope it will not be for a while so that some of us, the Minister included, can take a breath in the mean time from the tide of regulations and orders that we will be discussing over the next couple of weeks. One might have thought that it made sense for the whole thing to be brought together, but we have to deal with the order today. In the circumstances, we cannot object to it but we have regrets about the limited way in which the 2009 Act is being implemented. We look forward to seeing how the other aspects of it that remain to be dealt with emerge in due course.
Prisons: Suicide
Baroness Finlay of Llandaff Excerpts(12 years, 3 months ago)
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Lord McNally
My Lords, my noble friend is right. There have been three recent deaths—the first in youth custody for more than five years, so it is important to keep these numbers in perspective. The Youth Justice Board—YJB—which is responsible for the placement of young people in custody, is working closely with the Department of Health in the development of the comprehensive health assessment tool to screen and assess the needs of young people aged under 18 on reception. The Department of Health has developed a youth justice health and well-being needs assessment toolkit, which is now available to help with the planning and commissioning of health services for young people across the justice system. I should also add that the three recent deaths have been investigated by the Prisons and Probation Ombudsman.
Baroness Finlay of Llandaff
Since the instance of two or more mental disorders among the prison population is estimated to be 15 times that of the rest of the population and up to 35-fold higher in female prisoners, despite the assessment that the Minister referred to and despite the fall in suicides, there remains a major treatment problem for prisoners with mental health disorders, particularly when they move around and do not have stable placements. How is this going to be addressed by the Ministry of Justice and how will the changes to the NHS affect the provision of mental health services in prisons?
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Finlay of Llandaff Excerpts(13 years, 2 months ago)
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Lord Cormack
My Lords, I will not detain your Lordships long. This is a simple, precise amendment. It does not cover the ground of Amendment 170, but it does repeat, almost exactly, the amendment which your Lordships’ House approved just before we rose for the Easter Recess. When I moved the amendment at that stage, I made it quite plain that I felt that it was very wrong to single out a specific group of children who had suffered as a result of clinical negligence, and to leave the others. I have heard, of course, what my noble friend has said, and I do not for a moment question his personal commitment to these issues. But we have not had any adequate response in the very brief debate in the House of Commons, and my noble friend merely repeated this evening the amendment that the Government introduced at an earlier stage, which of course we welcome, but which creates an anomaly and an unfairness.
When we debated this last time, my noble friend Lady Eaton—who signed the earlier amendment along with the late Lord Newton of Braintree—made a very moving speech in which she talked about a child who had not suffered from brain damage, but who had been paralysed. She talked about the needs of a child who would grow up to be able to walk, in spite of the brain damage, and a child that would remain paralysed for the rest of his life. It was a movingly made speech, which illustrated what this amendment is all about.
I have heard what my noble friend has said about other means of getting support. I would just repeat a point that I made in my last speech: the National Health Service—of which we are all proud, and which we have spent many months discussing in your Lordships’ House during the course of this parliamentary Session—is an agency of the state. If anyone suffers as a result of the negligence of an agency of the state, then the state should, automatically and properly, provide a means of redress. This amendment does not go so far as that, because it concerns itself wholly and exclusively with children. I believe that, in all fairness, it is an amendment that even at this late hour should commend itself once again to your Lordships’ House. I believe that it would be appropriate for us to ask the other place to think again. It did not think very much about this one, and it really should. In his brief intervention this afternoon, my noble friend Lord Higgins referred to the inadequacy of time given in another place to your Lordships’ considered amendments. As we look to the future of your Lordships’ House, we ought to consider, in the imbalance between the two Houses, whether it might not be appropriate to do a little more insisting, if what we have deliberated on is so summarily dismissed.
Given the present conventions, and the relationship between the two Houses as they exist, I do not believe that one should go on and on playing a game of ping-pong. However, in this instance we have every right to say to another place, “Please think about this. Think about the children who suffer as a result of clinical negligence. This is your opportunity to redress an imbalance”, because welcome as it is, and I repeat that it is welcome, what the Government have done does not go far enough. Let us send this back. Let the other place think, and because there are no large sums of public money involved in this—indeed it could be argued that we are probably in the long term saving public money—let them in their charity look to those who are most deserving of that charity. I beg to move.
Baroness Finlay of Llandaff
My Lords, I very strongly support the amendment. There is a very strong reason for looking at children separately from adults. Indeed the age of 16, as outlined in this amendment, makes sense because in the General Medical Council guidance 16 is the age at which a child can be assumed to have capacity to consent. When treating a child who is actively withholding consent to treatment and who is aged between 16 and 18, the doctor should and must think again. Those under 16, however, go into treatment at the consent of their parent or guardian, not of themselves. If they are then subject to error, whether that is unfortunate or negligent or almost wilfully neglectful, they have done so not with their own informed consent but with that of others.
The amendment that the Government have brought forward, which relates to neonates and birth-related trauma, is, I suggest, fraught with difficulties over the problem of premature babies and accurate estimation of the date on which they would had been born. Even in the very best of hands, estimates of their expected date of delivery have to have a plus or minus of four days around them. That would impose an eight-day error. I fear that there will be endless arguments. Should there be a small, very premature baby in a neonatal unit, and should somebody inadvertently inject the wrong drug or should their ventilator inadvertently be set incorrectly—switched off from oxygen levels, or whatever—I fear that there will be arguments around whether the expected date of delivery was really the one that had been written on the notes. Was it actually two days forward from that or two days back, depending on the date of the error?
This amendment avoids that kind of deeply traumatic argument and recognises the fact that a child undergoing treatment has not given their informed consent to it. That treatment has been at the consent of others acting on that child’s behalf. They must therefore be treated differently from adults because they are vulnerable on two counts: first, their age, and, secondly, because there was of course something wrong in the first place for them to be entrusted to the care of the service which then failed them.
Lord Higgins
My Lords, perhaps I may intervene for a moment to ask my noble friend a rather simple-minded question. The Reason given by the Commons set out in 170A states:
“Because it would alter the financial arrangements made by the Commons”.
Can my noble friend briefly tell us exactly what these financial arrangements are, to the extent that they affect the state of the economy in terms of public expenditure and so on?
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Finlay of Llandaff Excerpts(13 years, 3 months ago)
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Lord McNally
My Lords, Amendments 33, 34, 35, 42 and 43 are minor and technical consequential amendments, which provide clarification of the provision of the alcohol, abstinence and monitoring requirement introduced by an amendment on Report. Our intention is that new requirements should be available to the courts in England and Wales but not to the courts in Scotland or Northern Ireland. The amendment therefore ensures that the new requirement will not be capable of being imposed by a court in England and Wales on a person who is resident in Scotland or Northern Ireland. I beg to move.
Baroness Finlay of Llandaff
My Lords, I welcome these amendments. I am grateful to the Government for addressing an area that I overlooked in the amendments that I had drafted. I also should like to place on record my gratitude to the noble Baroness, Lady Northover, who, with me, met the domestic violence groups, as we had promised in the previous proceedings. We had a very useful and fruitful meeting with open discussion. At the end, everyone agreed that it was very clear that there was never any intention that the pilots should involve domestic violence, particularly not at the beginning, because the issues around domestic violence are so complex. The organisations involved in domestic violence very much want to be consulted at every stage of further development and the programmes in place to help people cope in situations of domestic violence are very important in trying to provide a safer and more stable society.